Human Resources/LABOUR WELFARE

QuestionWhat are the eligibility criteria for maternity benefit? In foreign countries, men also get paternity benefit. Should India follow this? Discuss

AnswerQuestion: What are the eligibility criteria for maternity benefit? In foreign countries, men also get paternity benefit. Should India follow this? Discuss

7. THE MATERNITY BENEFIT ACT, 1961
SECTION HEADING PROVISION
7.1 Scope All Women employees who have worked for 80 days in the last 12 months, except the ones covered under the ESI Act.
7.2 Leaves 12 Weeks, 6 weeks before the date of delivery and 6 weeks after the date of delivery. If a woman does not avail six weeks leave preceding the date of her delivery, she can avail of that leave following her delivery, provided the total leave period does not exceed 12 weeks.
7.2 Leave for Miscarriage Miscarriage or medical termination of pregnancy- 6 weeks immediately following the date of her miscarriage/medical termination of pregnancy.
7.2 Leave for tubectomy operation 2 weeks immediately following her day of tubectomy operation
7.3 Medical Bonus Every women entitled to maternity benefit under the act shall also be entitled to receive a medical bonus of Rs.250/-, if no pre-natal confinement and post natal care is provided for by the employer free of charge.

No. 13018/1/97-Estt.(L)
Government of India
Ministry of Personnel, P.G. & Pensions
(Department of Personnel & Training)
……
NEW DELHI, Dated 7th October, 1997.
OFFICE MEMORANDUM
Subject :- Recommendations of the Fifth Central Pay Commission relating to enhancement of quantum of MATERNITY LEAVE and to allow PATERNITY LEAVE in respect of Central Govt. Employees.
The undersigned is directed to say that consequent upon the decisions taken by the Govt. on the recommendations of the Fifth Central Pay Commission relating to Maternity Leave and Paternity Leave, the President is pleased to decide that the existing provisions of the Central Civil Services (Leave) Rules, 1972, may be treated as modified as follows in respect of civilian employees of the Central Govt. :-
The existing ceiling of 90 days maternity leave provided in Rule 43(1) ibid shall be enhanced to 135 days.
A male Govt. servant (including an apprentice) with less than two surviving children may be granted Paternity Leave for a period of 15 days during the confinement of his wife. During the period of such leave, he shall be paid leave salary equal to the pay drawn immediately before proceeding on leave. Paternity Leave shall not be debited against the leave account and may be combined with any other kind of leave (as in the case of Maternity Leave). It may not normally be refused under any circumstances.
2. These orders take effect from the date of issue.
3. In the light of paragraph 2 above, a female Govt. servant in whose case the period of 90 days of Maternity Leave has not expired on the said date shall also be entitled to the Maternity Leave of 135 days. Similarly, Paternity Leave to a male Govt. employee may also be allowed in case his wife had given birth to the child on a date not prior to 135 days from the date of issue of this order.
4. Formal amendments to the Central Civil Services (Leave) Rules, 1972, are being issued separately.
5. In so far as persons serving in the Indian Audit & Accounts Department are concerned, these orders issue in consultation with the Comptroller & Auditor General of India.

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What are the provisions for maternity leave?

Every organisation has provisions for a specified period of time that is designated as maternity leave. This may vary form 3-6 months and is usually a paid leave. However, though leave may be granted, most women may have to undergo subtle discrimination once her colleagues come to know that she is pregnant. Thus, it is a good idea to tell the immediate supervisor about the pregnancy. This makes it easier to dispel any doubts or misunderstandings between the employer and the employee. In India, usually a maternity leave is for 12 weeks and the employer pays for the leave. In case of a miscarriage, a woman is entitled to 6 weeks paid leave from the day of the miscarriage.

The Maternity Benefit Act, 1961

The Central Government passed the Maternity Benefit Act in 1961 which extends to the whole of India, and to every establishment belonging to the government – industrial, commercial or agricultural. It provides for certain benefits which are granted to a woman during her pregnancy. Also she cannot be dismissed from service on account of her pregnancy.

The maximum permissible period of maternity leave is 12 weeks, with 6 weeks leave to be taken before delivery and 6 weeks immediately after the child is born. A woman can ask for light work before she goes off on leave. The employer cannot reduce her salary in this scenario. The maternity benefits can only be withdrawn if the employee joins some other organisation during that time.
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MATERNITY LEAVE

• All female employees who have completed 1year of continuous employment in the company are eligible for maternity benefit for a period of three months.

• All female employees who are covered ESIC act would be given salary of one month by the company and rest of two months salary would be given by the ESIC.

• All female employees who are not covered under ESIC act avails a maternity leave then under such circumstance the company would be liable to pay such female basic salary only.

• All female employees who are not covered under ESIC act avails a maternity leave, and has been relocated in the interest of the company, to the location of convenience of company, then under such circumstance the company would be liable to pay both basic salary and then house rent accommodation cost as mentioned in appointment letter.

• Female employees are liable for availing paid leaves allocated by the company over and above three months leave consumed by the female employees on the ground of maternity.

• Female employees are liable to claim all privileges and benefits provided by the company only for a period of three months applied for, with the company as maternity leave

• All the benefit provided under the ESIC act during maternity leave has to be claimed by the employee herself and employer will not be liable in any manner whatsoever

• All female employees are liable for availing maternity benefit twice in every four years.

• All female employees who are covered under ESIC act do not wish to claim benefit under the ESIC act then such employees can not claim any benefit or privileges either under any other act or directly from the employer.

• Company is not liable to pay beyond the prescribed medical benefits mentioned in the offer letter to any employees nor is the employer liable to bear the hospitalization expenses incurred on account of maternity/labor

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Maternity Leave

Female employees with at least 12 months of continuous service are entitled to maternity leave.

Maternity leave is unpaid leave which is available for a minimum period of six weeks and for a maximum period of 52 weeks if the employee is the primary carer. Other types of leave can be taken in conjunction with maternity leave providing the total period of absence does not exceed 52 weeks.

Any employee taking maternity leave is required to take at least six weeks continuous leave after the date of the birth of her child. The employer may, with 14 days notice, require the employee to commence maternity leave within six weeks of the presumed confinement date.

Applications for maternity leave should include personal details, a medical certificate detailing the expected date of confinement or birth, proposed commencement date and duration of leave. Advice as to whether superannuation payments will continue should be given by the employee.

Where the pregnancy is terminated other than by birth of a living child and the employee has not commenced maternity leave, her entitlement to such leave ceases to exist. However, an employee may be entitled to special maternity leave, as specified by her doctor, if the pregnancy has extended beyond 28 weeks, and is terminated other than by birth of a living child.

Details of return to work date must be given four weeks in advance. The employee is entitled to return to the position held prior to taking maternity leave or to an alternative position of comparable status and pay.

Maternity leave will not count towards continuous service.

▌ Transfer to a Safe Job
If a pregnant employee provides a doctors certificate stating she is fit to work but is unable to continue in her present position she is entitled to be transferred to a safe job. If transferring the employee to a safe job is not reasonably practicable then the employee is entitled to paid leave for the period during which she is unable to continue in her present position (as stated in the medical certificate).

A pregnant employee is only eligible to be transferred to a safe job if she is entitled to, and has formally applied for, maternity leave.

This entitlement is in addition to any other leave entitlement and does not reduce the period of maternity leave to which an employee is entitled.

Paternity Leave

Permanent male employees with at least 12 months continuous service are entitled to paternity leave.

Paternity leave is unpaid leave available for a minimum period of one week at the time of confinement and a maximum period of 52 weeks if the employee is the primary carer.

Other types of leave can be taken in conjunction with paternity leave providing the total period of absence does not exceed 52 weeks.

Applications for paternity leave should include personal details, a medical certificate detailing the date of confinement or birth, proposed commencement date and duration of leave. Additionally, the employee will need to provide a Statutory Declaration stating he will be the primary carer. Advice as to whether superannuation payments will continue should be given by the employee.

Where the pregnancy is terminated other than by the birth of a living child and the employee has not commenced paternity leave, his entitlement to such leave ceases to exist.

Details of the return to work date must be given four weeks in advance. The employee is entitled to return to the position he held prior to taking paternity leave or to an alternative position of comparable status and pay.

Paternity leave will not count towards continuous service.

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OVERSEAS Paternity pay and leave
Eligibility
You must be taking time off to look after the child and be one of the following, the:
• father
• husband or partner of the mother (or adopter)
• child’s adopter
There are extra conditions you need to meet to qualify for ordinary or additional leave or pay.
Ordinary Paternity Leave
You must:
• be an employee
• have worked for your employer continuously for at least 26 weeks by the end of the 15th week before the expected week of childbirth (known as the ‘qualifying week’)
• give the correct notice
The ‘qualifying week’ is different if you adopt.
Ordinary Paternity Pay
You must:
• have worked for your employer continuously for at least 26 weeks by the end of the 15th week before the expected week of childbirth (known as the ‘qualifying week’)
• be employed by your employer up to the date of birth
• earn at least £109 a week (before tax)
• give the correct notice
The ‘qualifying week’ is different if you adopt.
Additional Paternity Leave and Pay
The child’s mother or adopter must have qualified for one of these:
• Statutory Maternity Leave or Pay
• Maternity Allowance
• Statutory Adoption Leave or Pay
They must have returned to work and no longer be getting any of the above.
You must:
• have worked for your employer continuously for at least 26 weeks by the end of the 15th week before the expected week of childbirth (known as the ‘qualifying week’)
• still be employed by your employer the week (Saturday to Sunday) before your leave or pay starts
• earn on average at least £109 a week (before tax)
• confirm the start and end dates of your partner’s leave
• confirm your partner has at least 2 weeks left of their maternity or adoption pay (APP only)
• give the correct notice
The ‘qualifying week’ is different if you adopt.
If you lose your baby
You can still get paternity leave or pay if your baby is:
• stillborn from 24 weeks of pregnancy
• born alive at any point during the pregnancy
If you’re not eligible
Your employer must tell you with 28 days if you don’t qualify and why using form OSPP1 (or ASPP1 if you’ve applied for additional paternity leave or pay).
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IN INDIA,
A MINIMAL PATERNITY LEAVE EXISTS BUT NOT PROPERLY IMPLEMENTED.

A FOREIGN FOREIGN TYPE OF PATERNITY LEAVE SYSTEM WOULD HELP
-employee relations
-improve family support
-help staff retention
-contribute to the labour welfare.
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